DOE 1910-5159 Supporting Statement A Revised 10-29-20

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Energy Priorities and Allocations System

1. Part A: Justification

Insert Collection Instruments

DOE F 544, Request for Special Priorities Assistance

OMB No. 1910-5159

August 2020

U.S. Department of Energy

Washington, DC 20585

Table of Contents

Part A: Justification i

Introduction 2

A.1. Legal Justification 2

A.2. Needs and Uses of Data 3

A.3. Use of Technology 5

A.4. Efforts to Identify Duplication 5

A.5. Provisions for Reducing Burden on Small Businesses 5

A.6. Consequences of Less-Frequent Reporting 5

A.7. Compliance with 5 CFR 1320.5 5

A.8. Summary of Consultations Outside of the Agency 7

A.9. Payments or Gifts to Respondents 7

A.10. Provisions for Protection of Information 7

A.11. Justification for Sensitive Questions 8

A.12A. Estimate of Respondent Burden Hours 8

A.12B. Estimate of Annual Cost to Respondent for Burden Hours 9

A.13. Other Estimated Annual Cost to Respondents 10

A.14. Annual Cost to the Federal Government 10

A.15. Reasons for Changes in Burden 10

A.16. Collection, Tabulation, and Publication Plans 10

A.17. OMB Number and Expiration Date 11

A.18. Certification Statement 11

Introduction

This information collection is being used to meet requirements of the Defense Production Act (DPA) priorities and allocations authority necessary or appropriate to promote the national defense. Data supplied will be used to evaluate applicants requesting special priorities assistance to fill a rated order (a contract, subcontract, or purchase order) issued in accordance with the DPA and DOE’s implementing regulations.

The Form DOE-F 544 will be used to allow persons to request special priorities assistance from DOE to fill a rated order issued in accordance with the DPA and DOE’s implementing regulations.

The Department of Energy is seeking to renew this collection request. DOE published a 60-day notice in the Federal Register Vol. 85, No. 86 / May 4, 2020 seeking comment on the proposed extension of the three-year information collection, including Form DOE F 544 and the other proposed information collection and recordkeeping requirements.

A.1. Legal Justification

Explain the circumstances that make the collection of information necessary. Identify any legal or administrative requirements that necessitate the collection. Attach a copy of the appropriate section of each statute and regulation mandating or authorizing the information collection.

Under the Defense Production Act of 1950, as amended (50 U.S.C. 4501, et seq.) (DPA), the President is given authority to require priority performance of contracts and orders and to allocate materials, services, and facilities, to promote the national defense. Similar priorities authority is found in Section 18 of the Selective Service Act of 1948 (50 U.S.C. App. 468). This authority is used to ensure the timely delivery of products, materials, and services to meet current national defense requirements. This includes civil emergency preparedness under title VI of the Robert T. Stafford Disaster Relief and emergency Assistance Act (42 U.S.C. 5195 et seq.), energy production or construction, and critical infrastructure protection and restoration.

Section 704 of the DPA authorizes the President to make such regulations and issue such orders as the President determines to be appropriate to carry out the provisions of the Act. Section 705 of the DPA authorizes the President to obtain information by regulation, subpoena, or otherwise as may be necessary or appropriate to the enforcement or administration of the Act and implementing regulations. The DPA also provides for criminal sanctions and certain civil remedies.

This authority has been delegated by the President to the Secretary of Energy for energy resources and will be administered by the Office of Electricity through the Energy Priorities and Allocations System (EPAS) regulation (10 CFR 217).

The goals of the EPAS include (1) assuring the timely availability of energy resources to meet current national defense requirements and (2) providing a regulatory framework for rapid response in case of a national emergency. In pursuing these goals, the Office of Electricity attempts to minimize disruptions to normal commercial activities. The EPAS facilitates procurement throughout the entire chain of supply, from prime contractor to the lowest tier supplier of raw materials.

The Form DOE F 544, described in section § 217.40(c) will be used to allow persons to request special priorities assistance from DOE to fill a rated order issued in accordance with the DPA and DOE’s implementing regulations.

Because the EPAS is a regulatory system, provisions are included to ensure that transactions under the regulation can be audited to determine compliance, and for criminal and civil enforcement purposes. To facilitate this audit process, every person subject to the regulation is required to retain records of such transactions for at least three years, and to produce these records for inspection on demand, pursuant to the regulation. This requirement also puts these persons on notice that certain business records must be retained and made available for audit purposes.

To ensure the system’s effective and efficient operation, as well as to ensure compliance with its requirements, several customer notification requirement provisions are also included. Two such provisions are provided in section 217.33(d) as follows:

Section 217.33(d)(1) requires that a person receiving a DPA-rated contract or purchase order must notify the customer of acceptance or rejection of the order in writing within fifteen (15) working days after receipt of a lower priority rated (DO) order or within ten (10) working days for a higher priority rated (DX) order. Orders may be accepted either in writing or electronically. If the order is rejected, the person must give the customer the reasons for the rejection in writing.

Section 217.33(d)(2) requires that if a person has accepted a DPA-rated order and subsequently finds that deliveries to the customer against the order will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of the new shipment date. If the notification is given verbally, written or electronic notification must be provided within five (5) working days.

A.2. Needs and Uses of Data

Indicate how, by whom, and for what purpose the information is to be used. Except for a new collection, indicate the actual use the agency has made of the information received from the current collection

The record keeping requirement is necessary to support the administration and enforcement of the EPAS regulation. It assures the availability of records for at least 3 years of transactions that are directly related to the placement of contracts or purchase orders under the EPAS by contractors with suppliers to acquire items (materials, products, and services) needed to fill orders. Such records would include administrative, accounting, purchasing, scheduling, production, and shipping records, the receipt and acceptance or rejection of contractors' orders by suppliers, and any other relevant and material record to evidence the timely production and delivery of items. The requirement implements the Section 705 authority of the DPA (see #1 above).

The requirement to retain records for at least 3 years generally imposes no additional burden on a person as most business entities maintain records of transactions for at least three years both for internal operations, management, and audit purposes as well as in response to the requirements of other government agencies such as the Internal Revenue Service. However, we are unable to specifically reference any business record keeping requirements imposed by other agencies.

The customer notification requirements are also necessary to support the administration of, and compliance with, the EPAS, and to promote its effectiveness and efficiency. Because timeliness of supplier performance is a basic element of the EPAS, these requirements assure that the customer will receive notification that the supplier has in fact received the customer’s DPA-rated contract and will begin performance against the order as required. Likewise, if the order is rejected, the customer will be able to take prompt action to either seek another supplier or work with the supplier to overcome the rejection. If the rejection cannot be resolved and there is no alternate source of supply, the customer can seek Government special priorities assistance as provided in the EPAS.

Form DOE F 544 is designed to allow manufacturers to request special priorities assistance for the performance of a rated order(s) issued in accordance with the Defense Production Act and DOE’s proposed implementing regulations – 10 CFR Part 217, Energy Priorities and Allocations System.

DOE asks for the following information on the Form DOE F 544 to ensure that the Defense Production Act and associated proposed regulatory requirements are satisfied and that DOE can respond appropriately to the request for special priorities assistance.

1. Name and complete address of Applicant, and appropriate contact information

2. If Applicant is not the end-user Government agency, the name and complete address of Applicant’s customer.

3. If Applicant is not end-user Government agency, item(s) to be delivered by Applicant under its customer’s contract or purchase order though the use of the item(s) specified. If known, the Government program and end-item for which these items are required. If Applicant is end-user Government agency and specified item(s) are not end-items, the end-item for which the specified item(s) are required.

4. Item(s) (including service) for which Applicant requests assistance, including the quantity (pieces/units), description (with identifying information such as model or part number), and dollar value of each quantity listed.

The customer notification requirements, especially in view of the widespread use of electronic communications, generally imposes very little additional burden on suppliers as DPA-rated orders are rarely rejected and most suppliers in the ordinary course of their business will notify their customers of late delivery, especially when on-time delivery is of the essence..

The Section 515 Information Quality Guidelines apply to this information collection, which complies with all applicable information quality guidelines, i.e., OMB, Department of Energy, and specific operating unit guidelines.

A.3. Use of Technology

Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

DOE based the Form DOE-F 544 on the existing Form BIS-999 used by the Department of Commerce (DOC) for special priorities assistance requests made pursuant to DOC’s Defense Priorities and Allocations System regulations. DOE will allow electronic submission of Form DOE-F 544 as a .pdf document to reduce the burden on applicants.

A.4. Efforts to Identify Duplication

Describe efforts to identify duplication.

Each defense rated order is unique as to item, quantity, date, contractor, subcontractor, and supplier. For audit purposes, there is no other source of records available. Also, the customer notification requirements associated with acceptance, rejection, or performance against these orders are also unique and there is no other available source of this information. There are no duplicative efforts, since this collection of information is unique to DOE.

A.5. Provisions for Reducing Burden on Small Businesses

If the collection of information impacts small businesses or other small entities, describe any methods used to minimize burden.

This collection of information does not impact small businesses or other small entities.

A.6. Consequences of Less-Frequent Reporting

Describe the consequence to Federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing burden.

There is no pre-determined frequency for this collection, since it is conducted on an as needed basis. Without the record keeping and customer notification requirements, our ability to successfully administer the EPAS, ensure compliance with its provisions, and ensure its effectiveness and efficiency in meeting its stated goals, would be greatly diminished with a substantial negative impact on industry usage of the EPAS and compliance with its provisions at all levels, from the lowest tier suppliers to the prime contractors. However, with the widespread use of computerized record keeping and electronic communications throughout industry, especially by small business concerns, the burden of record keeping and customer notification as required by the EPAS is minimized.

A.7. Compliance with 5 CFR 1320.5

Explain any special circumstances that require the collection to be conducted in a manner inconsistent with OMB guidelines. (a) requiring respondents to report information to the agency more often than quarterly; (b) requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it; (c) requiring respondents to submit more than an original and two copies of any document; (d) requiring respondents to retain records, other than health, medical government contract, grant-in-aid, or tax records, for more than three years; (e) in connection with a statistical survey, that is not designed to product valid and reliable results that can be generalized to the universe of study; (f) requiring the use of statistical data classification that has not been reviewed and approved by OMB; (g) that includes a pledge of confidentially that is not supported by authority established in stature of regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; (h) requiring respondents to submit proprietary trade secrets, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.

The data are being collected in accordance with all OMB guidelines set forth in 5 C.F.R. 1320.5 except as specifically explained below:

DOE notes that the EPAS record keeping requirement is triggered by a person's receipt of a DPA-rated order. Without this requirement, we would not be able to effectively and efficiently determine compliance by a person with, or prosecute a person under, the DPA, the Selective Service Act, the EPAS regulation, or official actions taken by the Office of Electricity under the EPAS. Nor would we be able to administer properly our delegated responsibilities under these statutes.

The EPAS customer notification requirement is also triggered by a person's receipt of a rated order or when it becomes known that the person will be unable to meet the required delivery date or dates set forth in the rated order. A copy of the customer notification is not sent to the Government. Both the person sending the notification and the person receiving the notification must retain a file copy as an ordinary business record for at least three (3) years as required by section 217.91 of the EPAS.

EPAS is based on DOC’s long-standing Defense Priorities and Allocations System (DPAS). We understand from DOC that the record keeping and customer notification requirements have been periodically reviewed since DOC’s DPAS regulation was first published as a proposed rule in 1981. This was in addition to DOC solicitation of public comment on all aspects of the regulation, including the record keeping and customer notification requirements. In 1983, these requirements were again reviewed as part of a comprehensive review of all of DOC’s data collection activities to ensure that the requirements were at the minimum necessary to properly administer our national security emergency preparedness responsibilities. While many commenters responded concerning various aspects of the regulation, no commenter objected to these requirements. Again in 1988, 1993, and 1998, further DOC reviews of its DPAS regulation and its associated information collection, record keeping, and customer notification requirements supported the conclusion that these requirements are at the minimum and generally impose very little additional burden on a business entity than is otherwise necessary for the proper conduct of its operations in the ordinary course of its business. It is DOE’s understanding that DOC continues to support that conclusion.

The record keeping and customer notification requirements have been a part of the priorities and allocations regulations since the early 1950's to support the Government's priorities and allocations and defense preparedness activities. Industry has been consulted periodically concerning these provisions since their inception and has been consistently supportive. Furthermore, a three (3) year record retention requirement is consistent with standard business record keeping practices and with other Government imposed record keeping requirements (e.g., for income and other tax purposes). A reduction of this time would make it much more difficult for us to ensure EPAS compliance without any corresponding benefit to business entities who receive priority rated orders under the EPAS.

A.8. Summary of Consultations Outside of the Agency

If applicable, provide a copy and identify the date and page number of publication in the Federal Register of the agency’s notice, required by 5CFR 320.8(d), soliciting comments on the information collection prior to submission to OMB. Summarize public comments received in response to that notice and describe actions taken in response to the comments. Specifically address comments received on cost and hour burden. Describe efforts to consult with persons outside DOE to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or report.

DOE published a 60-day notice in the Federal Register Vol. 85, No. 86 / May 4, 2020 seeking comment on the proposed extension of the three-year information collection, including Form DOE F 544 and the other proposed information collection and recordkeeping requirements. One comment was received. The commenter requested that companies provide information about current production of oil, maximum available oil production, and costs of incremental energy production, in order to information Defense Production Act decisions or orders. The commenter stated that knowing the capacity of the industry as a whole by aggregating potential production from various companies would aid in allocation and prioritization of any necessary energy production under the Defense Production Act. However, the information needed in Form DOE F 544, described in section § 217.40(c), will be used to allow persons to request special priorities assistance from DOE to fill a rated order issued in accordance with the DPA and DOE’s implementing regulations. Form DOE F 544 is not used to aid in allocation of oil.

DOE published a 30-day notice in the Federal Register Vol. 85, No. 171 / September 2, 2020 announcing the Submission of the PRA package and collection instrument for Office of Management and Budget (OMB) review and public comment request. No comments were received.

No other efforts were made to contact persons outside of DOE to obtain their views on the instrument.

A.9. Payments or Gifts to Respondents

Explain any decision to provide any payment or gift to respondents, other than remuneration of contractors or grantees.

There are no provisions for payments to respondents.

A.10. Provisions for Protection of Information

Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy.

Section 705(d) of the Defense Production Act provides that information obtained under this section which DOE deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall not be published or disclosed unless DOE determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to the Department of Energy in connection with the enforcement or administration of the Defense Production Act, this regulation, or an official action, is deemed to be confidential under section 705(d) of the Defense Production Act and shall be handled in accordance with applicable federal law.

This section provides a criminal penalty for any person who willfully publishes or discloses information collected under the authority of the Act which is deemed confidential or with reference to which a request for confidential treatment is made by the person furnishing the information.

A.11. Justification for Sensitive Questions

Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. This justification should include the reasons why DOE considers the questions necessary, the specific uses to be made of the information, the explanation to be given to persons from whom the information is requested, and any steps to be taken to obtain their consent.

There are no questions of a sensitive nature in these data collections.

A.12A. Estimate of Respondent Burden Hours

Provide estimates of the hour burden of the collection of information. The statement should indicate the number of respondents, frequency of response, annual hour burden, and an explanation of how the burden was estimated. Unless directed to do so, DOE should not conduct special surveys to obtain information on which to base hour burden estimates. Consultation with a sample fewer than 10 potential respondents is desirable.

Because DOE has not used its authorities under the Defense Production Act since 2001, the burden hours for the collection of information conducted pursuant to the EPAS regulations would be minimal. The number of respondents and burden hours estimated here are based on an emergency or other unlikely event that may or may not happen.

A request for a priority rating or special priorities assistance must be submitted on Form DOE F 544. DOE estimates that completion of this form will take no more than 32 minutes. In the unlikely event of a widespread disaster for which the owners and operators of energy infrastructure are unprepared and require government assistance, DOE estimates 10 annual responses could be submitted. The estimated total annual burden for form completion activity is 320 minutes or 5.33 hours.

For an estimate of the burden hours associated with record keeping activity, the DOC DPAS experience is instructive. DOC estimates that each entity spends one minute to establish and maintain a special record for each defense rated order received. If 10 rated orders are received under EPAS, the total annual burden is 10 minutes for this record keeping activity.

Every rated order received must be accepted or rejected as required by the EPAS. For an estimate of the burden hours associated with acceptance or rejection activity, the DOC DPAS experience is again instructive. DOC estimates that each entity spends up to 5 seconds to accept the order and up to 15 minutes to reject the order, and that less than 1 percent of rated orders are rejected. If 10 rated orders are received under EPAS, and as many as one (10 percent) is rejected, the total annual burden is less than 16 minutes for this acceptance or rejection activity.

If an order is delayed, EPAS requires that the customer be notified. Looking to DOC’s DPAS activities for an estimate of the burden hours associated with this notification activity, it is assumed that of the total number of rated orders received, deliveries on 1% of these orders will be delayed and will require that the customer be notified, and each entity spends up to 15 minutes to prepare and send the notification. If 10 rated orders are received under EPAS, and as many as one (10 percent) is delayed, the total hourly annual burden is no more than 15 minutes for this notification activity.

In DOC’s experience, many respondents (primarily smaller entities) receive only a few rated orders while rated orders may be the principal business, or the only business, for other respondents. In addition, most entities, including small entities, have access to computerized record keeping and electronic communication and would use this capability to maintain records in the ordinary course of business and to communicate acceptance of an order or to notify the customer of delayed delivery.

Table A1. Estimated Respondent Hour Burden
Form Number/Title (and/or other Collection Instrument name)	Type of Respondents	Number of Respondents	Annual Number of Responses	Burden Hours Per Response	Total Annual Burden Hours	Annual Reporting Frequency
Form DOE F 544	Government or Private Sector	10	1	0.60	6.0	1
TOTAL		10	1		6.0

A.12B. Estimate of Annual Cost to Respondent for Burden Hours

Provide estimates of annualized cost to respondents for the hour burdens for collections of information, identifying and using appropriate wage rate categories. The cost of contracting out or paying outside parties for information collection activities should not be included here. Instead, this cost should be included under ‘Annual Cost to Federal Government’.

Form Completion – Using DOE’s assumption that it takes 32 minutes to complete Form DOE-F 544, and the time value is fully burdened at $65.58/hour, assuming a the median salary Management Analyst ($40.99¹ multiplied by 1.6 to include benefits) or filer with similar skills completes the form, the total cost for this EPAS activity would be $349.76.

Record Keeping – Using DOC’s DPAS assumption that it takes one minute of extra time per respondent to make a record of receipt of a rated order, and the time value is $65.58/hour, the total cost for this EPAS activity would be $10.93

Acceptance or Rejection – Using DOC’s DPAS assumption that it takes 5 seconds to accept and 15 minutes to reject a rated order, and the time value is $65.58 /hour, the total cost for this EPAS activity would be $16.40.

Customer Notification – Using DOC’s DPAS assumption that it takes 15 minutes to notify a customer of a delay, and the time value is $65.58/hour, the total cost for this EPAS activity would be $16.40.

Total annual cost burden for DOE’s EPAS activities is $393.49.

Table A2. Estimated Respondent Cost Burden
Type of Respondents	Total Annual Burden Hours	Hourly Wage Rate	Total Respondent Costs
Government or Private Sector	6.0	$65.58	$393.49
TOTAL	6.0		$393.49

A.13. Other Estimated Annual Cost to Respondents

Provide an estimate for the total annual cost burden to respondents or record-keepers resulting from the collection of information.

No other annual costs.

A.14. Annual Cost to the Federal Government

Provide estimates of annualized cost to the Federal government.

No DOE staff time has been spent on this collection since 2001. DOE estimates that processing EPAS requests today would take an average of 8 hours of staff time at $55/hour fully burdened, assuming a GS-11 step 1. If 10 requests were submitted to DOE through Form DOE-F 544, the annualized cost to the Federal government for this collection would be $4,400.

A.15. Reasons for Changes in Burden

Explain the reasons for any program changes or adjustments reported in Items 12, 13 (or 14) of OMB Form 83-I.

While the rates of labor have changed no changes to the amount of hours have changes. No new changes in requirements from previous form.

Table A4. ICR Summary of Burden
	Requested	Program Change Due to Agency Discretion	Change Due to Adjustment in Agency Estimate	Previously Approved
Total Number of Responses	10	0	0	10
Total Time Burden (Hr.)	6	0	0	6

A.16. Collection, Tabulation, and Publication Plans

For collections whose results will be published, outline the plans for tabulation and publication.

No complex techniques will be used.

A.17. OMB Number and Expiration Date

If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons why display would be inappropriate.

The expiration date will be included on the forms.

A.18. Certification Statement

Explain each exception to the certification statement identified in Item 19 of OMB Form 83-I.

There are no exceptions to the Certification Statement.

1 https://www.bls.gov/oes/current/oes131111.htm